FAMILY LAW: STUDY NOTES

FAMILY LAW

What are the family structures how does their recognition

and protection vary under the law:-

Form Definition Jurisdiction Legislation

Marriage ‘voluntary union Under Federal Marriage Act
for life of one man legislation 1961 (Cwlth)
and one woman to Family Law Act
the exclusion of
all others’
De Facto Act as a married After two years Property
couple but are not of co- (relationships)
actually married habitation they Act 1984
are recognised (NSW)
under state
leg. Future
needs are not
considered
upon
dissolution.
Same Sex Use your For many Property
Couples imagination. purposes (Relationships)
protected the Legislation
same as Amendment
heterosexual Act 1999
defacto (NSW)
couples.
Exceptions
include
adoption.
NSW leg.
Customary Traditional Not None – the
Marriages marriages recognised. Aust. Law
between Although upon Reform
Aboriginal/T.S breakdown Commission
peoples protected by recommended
state de facto that for specific
legislation purposes cust.
Marriages
should be
recognised.
Polygamo Having more than The first Marriage Act
us one spouse marriage is 1961 (Cwlth)
recognised
under normal
fed. Leg.
Single Single parent Not specific – Anti-

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parent families – 5:1 = issues such as Discrimination

females to males discrimination Act 1977
based on (NSW)
family status =
NSW
Blended Step family Kids = fed. Family Law
Families Their claim to Reform Act
step-parents 1995 (Cwlth)
estate = NSW re. equal care
of kids/ step
kids

The law has a strict definition and requirements of valid

marriages:-

The definition is provided by Hyde V Hyde and Woodman (1866). It is

also in the Family Law Act and Marriage Act. ‘The union of a man and
a woman to the exclusion of all others voluntarily entered into for
life’.

A valid marriage must have fulfilled the following

requirements:
 Marriageable age and parental consent
 Prohibited degrees of relationship
 Notice of marriage – at least one months warning

This is done for several reasons.

1. To protect the sanctity of marriage – to reflect society’s values of
marriage.
2. The notice of marriage to ensure that it is not rushed
3. Marriageable age – to ensure that the couple are old enough to
‘know what they are doing’ – and thus don’t end up divorced
4. To protect the members and the kids of the marriage (i.e. against
incest) and society’s values

What are the legal rights and obligations between parents

and children:-

Child-care/control
The 1995 Family Law Reform Act 1995 (Cwlth) stipulates that both
parents are responsible for the short and long-term care of their
children, unless there is a court order to the contrary. It also changed
the terminology to reflect a change in mentality – focusing on
parental responsibility rather than parental rights.
The law will only intervene when a child has been abused, neglected
or is uncontrollable. Child welfare authorities have the power to
remove a child from the home if they suspect improper care. The
Children and Young Persons (Care and Protection) Act 1998 (NSW)

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empowers the Children’s Court to remove the child. It also broadened

those legally required to report suspected abuse.
 Children have a right to receive education
 Children have a right to receive health care up to age 14.
 Parents have a right to discipline their children – it must
however be reasonable.
 Inheritance: if a dependent child is excluded from a parent’s
will, the Family Provision Act 1982 (NSW) can insist in adequate
provision of the child from the sill.

International Obligations
Australia is a signatory to the United Nations Convention on the
Rights of the Child – ratified it in 1990. The Family Law Reform Act
1995 was drafted with specific intention of including the convention –
especially in the ‘best interest of the child’

Birth Technology
 The Artificial Contraception Act 1984 (NSW)
Status of Children Act 1996 (NSW) covered paternity and the status
of children conceived artificially.

Ethics committees attached to IVF clinics address many of the

concerns as the law is largely slow to change and not comprehensive.
In 1988 the National Bioethics Consultative Committee was
established to inform state and federal government about
advancements.

Adoption
Adoption Act 2000 (NSW), focusing on adoption that is primarily a
service to the child. The NSW Law Reform Commission reviewed the
Adoption of Children Act 1965 (NSW) in 1997. It proposed reforms
such as open adoption.

Ex-nuptial children
The Children (Equality of Status) Act 1976 (NSW) gave ex-nuptial
children the same rights as other kiddies.

Problems in Family Relationships:-

 Domestic Violence
Domestic Violence is 98% against women.
A 1991 study by the Domestic Violence Committee revealed that one
third of Australian responders stated that they believed that domestic
violence was a private matter.
 Legal services available for victims such as the Domestic
Violence Advocacy Service
 Legal actions to protect victims – ADVO’s, interim orders,
criminal assault charges

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To increase effectives since the Crimes Amendment (Apprehended

Violence) Act 1999 (NSW) police must record why they didn’t initiate
criminal proceedings in relation to a reported breach of an ADVO.
 Legislative Responses: Crimes (Domestic Violence) Amendment
Act 1982 (NSW) introduced ADVO’s.

Ineffectiveness illustrated by deaths of Andrea Patrick in 1983, Jean

Lennon in 1996 and Irene Davis in 1997 despite their having ADVO’s
against their killers.

Difficult to enforce.
To some extent there is still a cultural acceptance of domestic
violence.
Police have also been reluctant to get involved in domestic violence
situations.

Divorce
The Family Law Act 1975 established just the one ground for divorce
– ‘irretrievable breakdown’. Upon the dissolution of marriage (and
the end of a de facto relationship) there are several aspects which
must be considered.

Division of Property
As evidenced in Hohol V Hohol, non-financial contributions are
considered in both marriage and de facto relationships

Residence of children and child maintenance

Parenting plans are established by the partners to establish who will
have residence of the children. It should be noted that it is the
responsibility of both parents to look after their children.

Spousal Maintenance
If one spouse cannot support themselves, and the other is able to,
then they will be required to pay a form of maintenance. In de facto
couples this varies and is uncommon. It exists on certain conditions
for a maximum of three years (for example if the spouse is caring for
an intellectually or physically disabled child of the relationship).

Parenting Plans
Parenting Plans are agreements between parents covering
arrangements regarding
 who the kids will live with
 who the kids will have contact with
 maintenance arrangements
 any other aspects or responsibility

If the parents cannot work it out and submit it to the court, then a
parenting order will be imposed by the court. They can be requested
by the child and anyone concerned about the child’s welfare.
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The Family Court of Australia:-

The Family Court of Australia was introduced in 1975. It provides

counselling and adjudications. The jurisdiction of the Family Court is
limited by the Constitution and cross-vesting restrictions. It does not
hear matters concerning child welfare unless it is directly related to
the dissolution of marriage or de facto relationship.

How effective is family law in protecting the needs of the

individual:-

Equality: the limit of protection the individual receives under the law
is determinate on their family status. For example de facto couples
are not entitled to the same extent of protection as are married
couples. Aboriginal customary marriages do also not receive the
same degree of protection. The Family Law system has made great
gains in increasing gender equality, for example no the non-financial
contributions are considered, although it can be noted that (upon
dissolution) the resulting single-parent family is more likely to be
towards the poverty line. This is often (although by no means always)
headed by the female partner. The no fault divorce also assisted in
making the family law more equitable as with regard to gender.

Children are now recognised as being more vulnerable members of

the community, with the Family Law Reform Act 1995 (Cwlth).

Accessibility De facto couples are not entitled to Family Court

counselling services unless they have children. Thus their
accessibility to this dispute resolution mechanism is limited.
De facto couples with children must also face two jurisdictions. For
example if they have children and the matter concerns child support,
then that will be heard under federal jurisdiction. For the matter of
property settlement however, it must be heard under state
legislation. This affects the accessibility that individuals receive,
particularly in relation to time and money and is evidenced in the
media article Double Trouble for De Factos SMH 19/06/99.

Legal aid is available to assist in an individual’s access to the family

law system
To reduce the time and cost of family court hearings, governments
have sought to include measures such as the use of primary dispute
resolution and the Federal magistrates scheme, contributing to the
95 % of family law cases settle out of court.

Enforceability: ADVO’s have come under criticism after the deaths

of Jean Lennon and others, and also due to police reluctance. This has
been improved under the Crimes Amendment Act (Apprehended
Violence) Act 1999 (NSW).

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Likewise the area of child support has been difficult to enforce. The
Child Support (Assessment) Act 1989 (Cwlth) was introduced to
remedy the 40 % of claims for child maintenance that were not being
met. A child may also apply for a maintenance order under the Family
Law Reform Act 1995 (Cwlth). They can also take out ADVO’s.
If a parent defaults on the parenting plan, they can be charged with
contempt of the court.

In regard to child neglect/abuse, it is base on the standard of proof

that it is ‘highly probable’ that the child is under threat. Court orders
can remove a child from the situation of compel the parent to
undergo ‘parenting classes’.

How effective is family law in protecting the needs of

society:-

Resource efficiency the movement to a focus of alternative dispute

resolutions was designed to achieve greater resource efficiency and
reduce time and delays. An example of such legislation is the Family
Law Reform Act 1995 (Cwlth).
The overlap of jurisdictions and the elimination of cross-vesting (the
Wakim case 1999) have resulted in a compromise of resource
efficiency. For example, a de facto couple with children must go
through both courts, with increased costs and time.

Standards reflected in Law the degree to which effective law

reform takes place can be seen to be a measure of how well the law
reflects social changes. Issues that confront community standards
include same sex marriages and birth technology; the law must
reflect the majority of the community’s values. It can be seen in the
areas that the law has changed that changing community values
marry with the legal system. An example can be seen the 1975 no
fault divorce legislation, and also legislation regarding domestic
violence.

Appeals and Review the parties have a right to appeal if they find
their needs are not being met.

Balancing individual rights with community rights

Domestic violence: A partner may believe it is their right to punish
their spouse, chid, (beyond reasonable force) however society does
not deem it as appropriate – thus the rights of society are imposed on
the individual.

Children: the welfare of children was previously held to be of less

importance than society’s rights, however now the law acts ‘with the
best interests of the child’.

How does law change:-

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Law reform takes place through the courts through new precedents
and through the parliament. The parliament is influenced by the
following bodies:-
 NSW/Australian Law Reform Commission
 Government Departments – eg – DOCS
 Lobby Groups
 HREOC
 Royal Commissions

Why does law change:-

Changing social values and demographics

 Eg. Recognition of other relationships, including same sex
relationships
 Eg. dissolution of marriage – now no fault
 Eg. Greater protection of children
 Eg. Domestic violence

Changing technology
 E.g. Birth technology – IVF, surrogacy

Failure of existing laws

 E.g. The laws on adoption

To meet international requirements

 E.g. the 1995 Family Law Reform Act to meet with the Rights of
the Child Convention

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